In the Supreme Court of Georgia

Decided: March 1, 2021

S21A0396. SWINSON v. THE STATE.

 MCMILLIAN, Justice.

Dan Toni Swinson appeals his convictions on two counts of 

malice murder in connection with the shooting deaths of Heber 

Jettie Bennett, Jr., and Eliace Marie Smith.1 On appeal, he asserts 

that the evidence was insufficient to support his convictions; that 

the trial court erred in denying his motion to suppress evidence 

 1 Bennett and Smith were killed on June 30, 2013, and in connection 

with their deaths, a Seminole County grand jury indicted Swinson on two 

counts of malice murder, two counts of felony murder predicated on aggravated 

assault, and two counts of aggravated assault. At a jury trial that took place 

from August 24 to September 2, 2015, Swinson was convicted on all counts. 

The trial court sentenced Swinson as a recidivist under OCGA § 17-10-7 (c) to 

two consecutive life sentences without parole on the malice murder convictions. 

The aggravated assault counts merged for sentencing, and the felony murder 

counts were vacated by operation of law. Swinson’s trial counsel filed a motion 

for new trial on September 25, 2015, which was amended by new counsel on 

June 22, 2018. The trial court denied the amended motion for new trial on April 

7, 2020, following an evidentiary hearing. Swinson filed a timely appeal, which 

was docketed to the term of court beginning in December 2020 and submitted 

for decision on the briefs.
2

obtained from a search warrant for his cell phone records, which was 

based, in part, on a warrantless request for cell site information

under the Stored Communications Act, 18 USC § 2701 et seq. (the 

“SCA”); and that the trial court erred in denying his motion for a 

mistrial after a witness testified about his incarceration on an 

unrelated charge. Swinson also asserts ineffective assistance of 

counsel on a number of grounds. We affirm.

1. Swinson first argues that the State failed to present 

sufficient evidence to allow any rational trier of fact to find beyond 

a reasonable doubt the essential elements of malice murder.2 He 

asserts that the evidence at trial, which was all circumstantial, did 

not exclude his defense that “Mexicans” murdered Bennett and 

Smith.

Where, as here, a conviction is based on circumstantial 

 2 Although Swinson argues that the evidence was insufficient to support 

his convictions on all of the charges in this case, because the felony murder 

charges were vacated by operation of law and the aggravated assault counts 

were merged into the murder convictions for sentencing purposes, his claims 

about the sufficiency of the evidence to support those crimes are moot. See 

Anderson v. State, 299 Ga. 193, 196 (1) n.4 (787 SE2d 202) (2016). 
3

evidence, the evidence must “not only be consistent with the 

hypothesis of guilt, but shall exclude every other reasonable 

hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. 

Whether an alternative hypothesis is reasonable or whether the 

circumstantial evidence excludes every reasonable hypothesis save 

that of guilt is left to the jury, and this Court “will not disturb that 

finding unless it is insupportable as a matter of law.” Johnson v. 

State, 307 Ga. 44, 48 (2) (834 SE2d 83) (2019). Moreover, in 

reviewing the sufficiency of the evidence as a matter of 

constitutional due process, this Court views the evidence in the light 

most favorable to the verdict to determine whether any rational trier 

of fact could have found the essential elements of the crime beyond 

a reasonable doubt, see Jackson v. Virginia, 443 U. S. 307, 319 (99 

SCt 2781, 61 LE2d 560) (1979), and any conflicts in the evidence are 

left to the province of the jury. See Walker v. State, 296 Ga. 161, 163 

(1) (766 SE2d 28) (2014).

So viewed, the evidence at Swinson’s trial showed the 

following. In 2013, Swinson stored a white Honda Civic containing 
4

$100,000 in money and drugs at a friend’s house in Ware County, 

outside of Waycross. After someone broke into the car and took the 

money and drugs, Swinson stated that he was going to kill or 

“torture” the people who stole from him. When the friend identified 

his relatives Bennett and Smith, along with a younger relative,3 as 

the ones who broke into Swinson’s car, Swinson asked the friend for 

Bennett and Smith’s address, and the friend gave Swinson a slip of 

paper with the address written on it.

At the time, Bennett and Smith lived in Seminole County, and 

Gene and Alva Reeves lived next door to them. At about 2:00 p.m. 

on June 30, 2013, the Reeveses left their home to take their 

grandchildren swimming. When they returned at around 3:45 to 

4:00 p.m., they saw a gold-colored SUV parked at Bennett and 

Smith’s house with both of its front doors open. Gene saw two men 

on the deck of the house, one noticeably taller than the other. Alva 

only saw one of the men as he was walking into the house. Later, 

 3 Bennett was the friend’s uncle and Smith was the friend’s step-sister.

Bennett and Smith, who were unrelated, were involved in a romantic 

relationship. The third relative was the friend’s step-nephew.
5

Alva saw the man she had seen earlier, whom she described at trial 

as being in his mid-twenties to mid-thirties and around six feet tall.

She also testified that Swinson “definitely could be” the man she saw

that day.

The Reeveses then left on a short errand, and when they 

returned home, the gold SUV was gone. Later that evening, the 

Reeveses noticed that the door to Bennett and Smith’s house was 

open while their air conditioner was running, but when they

knocked on the door and called out, no one answered. The next 

morning, the Reeveses observed that the door to Bennett and 

Smith’s shed was open, which was unusual because Smith, who kept 

antiques inside the shed, always locked it at night. When the 

Reeveses went next door to check on Bennett and Smith, they found 

the pair dead inside their home and called police. 

Law enforcement responded and found Bennett’s and Smith’s

bodies, one of the burners on the stove on, the oven door open, and 

evidence of a fire in the laundry room. Law enforcement also found 

.380 cartridge casings, one .380 bullet, and two pillows with marks 
6

later identified as being consistent with contact gunshots, meaning 

that the muzzle of the firearm had been pressed against the surface 

of the pillow. A GBI medical examiner testified that Smith died from 

gunshot wounds to the head and Bennett died from multiple 

gunshots. The medical examiner also located three .380 bullets

during her autopsies of the victims’ bodies. 

Swinson’s girlfriend testified that Swinson left their house 

early on the morning of June 30, 2013, and cell phone records and 

testimony introduced at trial showed that cell phones belonging to 

Swinson and his son, Jamahrey Swinson, moved from Waycross in

Ware County to Donalsonville in Seminole County, and back, that 

day. The records showed Swinson leaving Ware County at around 

9:00 a.m. and returning by 7:45 p.m. that night. 

The State also presented evidence showing that Swinson called 

his friend that day to get Bennett and Smith’s address again, and 

although the friend no longer had the address, the friend provided a 

description of their cars at Swinson’s request. The same day, 

Swinson asked his girlfriend to text him Bennett and Smith’s 
7

address, which she did. Swinson’s girlfriend also testified that she 

owned a gold Chevrolet Tahoe that Swinson had permission to drive.

Swinson was interviewed by law enforcement on July 2, 2013, 

and he arrived at the interview in his girlfriend’s gold Chevrolet 

Tahoe. During that interview, Swinson stated that Bennett and 

Smith had stolen drugs and money out of his car, but the drugs and 

money belonged to Mexican drug dealers for whom he sold cocaine. 

Swinson admitted that he obtained a handwritten address for 

Bennett and Smith, but he said he gave it to his drug-dealing 

associates, one of whom entered the address into a cell phone and 

burned the paper with the address on it. However, a search of the 

house Swinson shared with his girlfriend turned up a sheet of paper 

with the victims’ street in Seminole County written on it, as well as

a .380 bullet of the same brand as casings found at the victims’ 

home.4

Swinson also admitted getting the colors of the victims’ cars

 4 The girlfriend testified that the bullet did not belong to her and that it 

must have belonged to Swinson.
8

from his friend but said he gave it to “the Mexicans.” However,

Swinson’s cell phone data showed that after he called his friend on 

the day of the murders, he made no other outgoing calls from his cell 

phone until 7:58 p.m. Although Swinson claimed he was in Waycross 

the entire day watching his new baby, his girlfriend testified that

she did not think Swinson watched their child that day because she 

went to her mother’s house at about 10:00 a.m. after Swinson left 

and stayed there until Swinson returned home that evening.

Additionally, the men that Swinson identified as the Mexican drug 

dealers with whom he dealt were determined by law enforcement to 

have either been incarcerated at the time of, or to have been 

deported prior to, the murders. 

Based on this evidence, the jury was not required to believe 

Swinson’s claim that Mexican drug dealers murdered Bennett and 

Smith and could have found, instead, that Swinson’s defense was 

excluded by the evidence. We conclude, therefore, that the evidence 

presented at trial was sufficient as a matter of Georgia statutory law 

and constitutional due process to authorize a rational jury to find 
9

Swinson guilty beyond a reasonable doubt of the two counts of 

malice murder. See Jackson, 443 U.S. at 319 (III) (B); OCGA § 24-

14-6.5

2. Swinson asserts two arguments with regard to the cell-site 

data6 the State obtained from AT&T without a warrant under the 

SCA. First, he argues that the trial court erred in denying his motion 

to suppress cell phone evidence gathered by the State pursuant to a 

search warrant served on AT&T, which was based, in part, on the

earlier obtained cell-site data. Swinson also argues that his trial 

counsel provided ineffective assistance of counsel in failing “to 

 5 Swinson asserted three separate enumerations of error raising the 

general grounds under OCGA §§ 5-5-20 and 5-5-21, but he addressed these 

enumerations as one in his appellate brief and argued only sufficiency of the 

evidence. 

6 As this Court recently explained in Lofton v. State, 2021 Ga. LEXIS 28, 

(Case No. S20A1101, decided Feb. 15, 2021),

[a] “cell site” typically consists of either three or six directional

radio antennas mounted on a tower, light post, flagpole, church 

steeple, or side of a building. . . . Each time a phone connects to a 

cell site, the connection generates a time-stamped digital record in 

the service provider’s account records that includes the particular 

cell site and the specific antenna activated . . . ; such records are 

known as cell-site location information.

Id. at *11 n.3.
10

properly file” a motion to suppress evidence obtained as a result of 

that warrantless request to AT&T under the SCA. We see no merit 

to either argument.

The record demonstrates that Swinson’s trial counsel filed a 

pretrial motion to suppress his cell phone records and other evidence 

obtained by the GBI as a result of a search warrant served on AT&T. 

That motion cited information obtained from an earlier warrantless 

request to AT&T by the GBI based on exigent circumstances 

pursuant to 18 USC § 2702 (c) (4). In response to that warrantless 

request, AT&T provided 16 pages of records which included, among 

other things, cell-site data reflecting that Swinson’s cell phone used

cell phone towers between Ware and Seminole Counties on the day 

of the murders.

The trial court held a hearing on the motion to suppress, and 

the sole witness was the GBI agent who made the exigent 

circumstances request on July 2, 2013. Swinson’s counsel argued 

that the cell-site data, and any evidence subsequently obtained from 

it, should be suppressed because the State was required to obtain a 
11

search warrant before AT&T could furnish the data. The trial court 

denied the motion to suppress, however, finding that the telephone 

records pertaining to his cell phone were owned by AT&T, and 

Swinson did not have a reasonable expectation of privacy in those 

records; thus, he lacked standing to challenge the release of the 

records to the GBI, citing this Court’s opinion in Registe v. State, 292 

Ga. 154, 156 (734 SE2d 19) (2012). The trial court further concluded 

that suppression of the evidence was not a remedy available under 

applicable federal and state law and that AT&T complied with the 

law in producing the cell phone records.

(a) Swinson argues that the trial court erred in denying his

motion to suppress because the United States Supreme Court held

in Carpenter v. United States, __ U.S. __, __ (I) (A) (138 SCt 2206, 

201 LE2d 507) (2018), that “accessing seven days of [historical cellsite data] constitutes a Fourth Amendment search,” id. at ___ (III)

& n.3,7 and that a search warrant is generally required to obtain 

 7 We note that the holding in Carpenter was expressly limited to these

facts, and the Court did not reach the question of “whether there is a limited 
12

such information from a third-party telephone carrier. Because the 

cell-site data in this case was obtained without a search warrant, 

Swinson asserts that Carpenter requires us to reverse the trial 

court’s denial of his motion to suppress.8

However, Carpenter was decided almost three years after the 

trial court issued its order denying Swinson’s motion. At the time of

the order, 

no appellate precedent binding in Georgia courts held 

that a request or demand by a governmental entity to a 

cell phone service provider that the provider produce its 

records related to a customer’s account constituted a 

search under the Fourth Amendment. Under then 

existing constitutional doctrine, a person generally lacked 

a reasonable expectation of privacy in business records 

owned and maintained by a third-party business. 

Lofton v. State, 2021 Ga. LEXIS 28, at *13 (Case No. S20A1101, 

decided Feb. 15, 2021). See also Registe, 292 Ga. at 156 (holding that 

 

period for which the Government may obtain an individual’s historical [cellsite data] free from Fourth Amendment scrutiny, and if so, how long that 

period might be.” Carpenter, ___ U.S. at ___ (III) & n.3.

8 “In reviewing a ruling on a motion to suppress, we review the trial 

court’s factual findings for clear error and its legal conclusions de novo[,] . . . 

constru[ing] the evidentiary record in the light most favorable to the trial 

court’s factual findings and judgment.” White v. State, 307 Ga. 601, 602 (2) (837 

SE2d 838) (2020).
13

because defendants had no reasonable expectation of privacy in cell 

phone records, defendants generally lacked standing to challenge 

the release of such records under the Fourth Amendment), overruled

by Carpenter, __ U.S. __ at __ (III) (A). Moreover, the SCA authorizes

a service provider such as AT&T to voluntarily provide certain

records to a governmental entity “if the provider has a good-faith 

belief that an emergency poses a risk of death or serious physical 

injury that requires disclosure without delay. See Lofton, 2021 Ga. 

LEXIS 28, at *13. See also 18 USC § 2702 (c) (4). 

The evidence at the suppression hearing showed that when 

requesting Swinson’s records, the GBI agent represented to AT&T 

that the exigent circumstances supporting the request were a 

“[d]ouble homicide in Seminole County, GA” and that the “[s]uspect 

is currently armed and dangerous.” The GBI made the request at 

7:41 p.m. on July 2, 2013. As the trial court found, at that time, GBI 

agents were concerned for the life of the third person involved in 

stealing Swinson’s money and drugs. The agents were aware that 

Swinson had threatened to kill or torture the people who stole from 
14

him; two of the three people identified to him as being involved in 

the theft had been murdered two days earlier; the third person 

involved stated that he feared for his life and thought Swinson was 

going to kill him; and Swinson was not yet in custody.9

Under these circumstances, we conclude that law 

enforcement’s request for Swinson’s cell phone records and AT&T’s 

release of this documentation were based on “a good faith belief that 

[the] voluntary disclosure of the requested records was authorized 

under the SCA and binding appellate precedent at the time.” Lofton, 

2021 Ga. LEXIS 28, at *16-17. See also Registe, 292 Ga. at 156-57.

Thus, it was objectively reasonable for the GBI to rely on the SCA 

and then-existing appellate precedent to request the most recent 

four days of cell phone records for a double-homicide suspect on the 

day after the murder was discovered, while the suspect was still at 

large, and where a potential threat of harm to a third victim existed. 

See Lofton, 2021 Ga. LEXIS 28, at *22. 

Although Swinson asserts that we should nevertheless extend 

 9 Swinson was not arrested until around 10:00 p.m. that night.
15

the holding in Carpenter to exclude the evidence obtained as a result 

of the warrantless request to AT&T, we recently rejected a similar

argument in Lofton. As we explained in that case, even if we were to 

apply Carpenter here, reversal of the trial court’s order is not 

required

unless exclusion would serve the purpose of deterring 

future Fourth Amendment violations by law enforcement 

officers, which is the sole purpose of the exclusionary rule. 

For exclusion of evidence obtained in violation of the 

Fourth Amendment to be appropriate, the deterrence 

benefits of suppression must outweigh its heavy costs.

[And] when the police act with an objectively reasonable 

good-faith belief that their conduct is lawful,. . . then 

suppression fails to yield appreciable deterrence, and 

exclusion is clearly unwarranted.

Lofton, 2021 Ga. LEXIS 28, at *20 (citations and punctuation 

omitted). See also Davis v. United States, 564 U.S. 229, 236-38 (II) 

(131 SCt 2419, 180 LE2d 285) (2011). Here, we have concluded that 

the GBI was acting in good faith when, based on exigent 

circumstances, it requested that AT&T provide Swinson’s cell phone 

records, which included the cell-site data. Therefore, we conclude, as 

in Lofton, that
16

[b]ecause, at the time of [Swinson’s] trial, a federal 

statute, 18 USC § 2702 (c) (4), and binding appellate 

precedent, Registe, 292 Ga. at 157, authorized the 

investigatory conduct at issue, reversing the trial court’s 

decision in this case would have little, if any, additional 

benefit in deterring future violations of the privacy 

interests recognized in Carpenter. 

2021 Ga. LEXIS 28, at *23. Accordingly, we affirm the trial court’s 

denial of Swinson’s motion to suppress.

(b) We turn next to Swinson’s assertion that his trial counsel 

provided ineffective assistance by failing to properly file the motion 

to suppress. To succeed on this claim, Swinson must demonstrate 

both that his trial counsel performed deficiently and that, in the 

absence of counsel’s deficient performance, a reasonable probability 

exists that the outcome at trial would have been different. See 

Strickland v. Washington, 466 U.S. 668, 687-95 (III) (104 SCt 2052, 

80 LE2d 674) (1984). To establish the first prong of the Strickland

test, a defendant must show that trial counsel performed at trial “in 

an objectively unreasonable way, considering all of the

circumstances and in light of prevailing professional norms.” Shaw 

v. State, 307 Ga. 233, 249 (6) (835 SE2d 279) (2019) (citation 
17

omitted). And the reasonable probability of a different outcome

required to meet the prejudice prong “is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 694 

(III) (B). If Swinson fails to satisfy either part of the Strickland test, 

we need not consider the other part. See Hawkins v. State, 306 Ga. 

809, 812 (2) (833 SE2d 522) (2019). 

Swinson asserts that if his trial counsel had “properly filed”

and argued the motion to suppress the cell-site data provided by 

AT&T, then the trial court would have granted it. However, trial 

counsel essentially made the arguments later accepted in Carpenter, 

but which had been rejected in Registe, and Swinson does not

identify any other arguments that his trial counsel should have 

made. Swinson, therefore, has not shown that his counsel performed 

deficiently, and his ineffective assistance of counsel claim on this 

ground fails. See Esprit v. State, 305 Ga. 429, 438 (2) (c) (826 SE2d 

7) (2019) (“A criminal defense attorney does not perform deficiently 

when he fails to advance a legal theory that would require an 

extension of existing precedents and the adoption of an unproven 
18

theory of law.” (citation and punctuation omitted)). 

3. Swinson also contends that his trial counsel provided

ineffective assistance in failing to adequately cross-examine Alva 

Reeves about her testimony that Swinson “could definitely be” the 

man she saw on the day of the murders. 

The record demonstrates that Swinson’s trial counsel crossexamined Alva extensively at trial. In addition to asking questions 

regarding her eyesight, the weather conditions, and the distance 

from which she observed the man on the day of murders, counsel

also probed Alva regarding her failure to pick anyone out of a 

photographic line-up shown to her by law enforcement before trial.

Moreover, during cross-examination, trial counsel obtained 

admissions from Alva aimed at undercutting her in-court 

identification, including that she knew that Swinson was the man 

on trial for the murders and that she had seen his photograph in the 

newspaper before trial. Trial counsel also pressed Alva on her 

inability to “know” that Swinson was the person whom she saw, and 

Alva conceded that Swinson only fit the description. 
19

At the hearing on the motion for new trial, trial counsel 

testified that one reason he made the decision not to question Alva

further on her testimony that Swinson could be the man she saw

was because he had received information before trial that she might 

change her testimony to be more certain of whom she saw that day.

Because Alva did not testify that Swinson was definitely the man

she saw, only that he could be, trial counsel decided to leave the jury 

with Alva’s speculation, rather than to pursue further questioning 

that might cause her to make a more positive identification.

A strong presumption exists that a trial counsel’s performance

“fell within a wide range of reasonable professional conduct and that 

counsel’s decisions were made in the exercise of reasonable 

professional judgment.” Marshall v. State, 297 Ga. 445, 448 (2) (774 

SE2d 675) (2015) (citations and punctuation omitted). To establish 

that his counsel’s performance was deficient, Swinson must

overcome this presumption by showing “that no reasonable lawyer 

would have done what his lawyer did, or would have failed to do 

what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (2) (787 
20

SE2d 221) (2016). “In particular, decisions regarding trial tactics 

and strategy may form the basis for an ineffectiveness claim only if 

they were so patently unreasonable that no competent attorney 

would have followed such a course.” Id. (citation and punctuation 

omitted). “Decisions about what particular questions to ask on crossexamination are quintessential trial strategy and will rarely 

constitute ineffective assistance of counsel.” Davis v. State, 306 Ga. 

140, 146 (3) (e) (829 SE2d 321) (2019) (citation and punctuation 

omitted). Because we cannot say that trial counsel’s strategy 

regarding Alva’s testimony was so unreasonable that no competent 

attorney would have chosen the same strategy, we conclude that 

Swinson has failed to establish ineffective assistance of counsel on 

this ground.

4. In conjunction with his argument regarding trial counsel’s

cross-examination of Alva, Swinson asserts that newly discovered 

evidence from Jamahrey Swinson’s plea hearing contradicted her incourt identification of Swinson. He argues that the trial court 

therefore erred in denying his motion for new trial because a 
21

substantial likelihood of a different verdict exists if the jury had 

heard and considered Jamahrey’s evidence.10

Jamahrey was indicted separately from Swinson in connection 

with the murders. After Swinson was convicted of the crimes, 

Jamahrey entered into a plea agreement in which he pleaded guilty 

to concealing the death of another and was sentenced to five years 

of probation. Jamahrey made an allocution in connection with that 

plea,11 and Swinson called Jamahrey as a witness at the hearing on 

his motion for new trial. Jamahrey testified that during his plea 

allocution, he said that he was the man Alva saw on the day of the 

murders and that while he was interacting with her, he heard a 

gunshot. However, when questioned further, Jamahrey stated that

he did not stand by the testimony he gave during his allocution; 

rather, he said his testimony at the plea hearing consisted of what 

his lawyer and the district attorney told him to say. Then, after the 

 10 Although Swinson raised this issue in his amended motion for new 

trial and presented evidence in support at the hearing, the trial court did not 

expressly address this ground in denying the motion for new trial.

11 The record does not contain a transcript of Jamahrey’s plea allocution.
22

trial court advised Jamahrey that he could be subject to a felony 

charge of perjury if he changed the testimony he previously gave 

under oath, Jamahrey chose to assert his right against selfincrimination under the Fifth Amendment to the United States 

Constitution in response to any further questions about the

circumstances surrounding the crimes.

For a new trial to be granted based on newly discovered 

evidence, the moving party must show: 

(1) that the evidence has come to his knowledge since the 

trial; (2) that it was not owing to the want of due diligence 

that he did not acquire it sooner; (3) that [the evidence] is 

so material that it would probably produce a different 

verdict; (4) that [the evidence] is not cumulative only; (5) 

that the affidavit of the witness himself [was] procured or 

its absence accounted for; and (6) that . . . the only effect 

of the evidence will [not] be to impeach the credit of a 

witness.

Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980)

(citations and punctuation omitted). Swinson has made no effort to 

show how Jamahrey’s testimony fits within these requirements, and 

we conclude that it would not have been an abuse of discretion for

the trial court to determine, at a minimum, that Swinson cannot 
23

establish the third Timberlake factor, requiring that the evidence be

so material that it would probably produce a different verdict.12 Even 

if the jury accepted as true Jamahrey’s testimony that he was the 

man Alva saw that day and that he heard a gunshot while in her 

presence, that evidence does not undermine the State’s theory of the 

case. In fact, this testimony would be consistent with the cell phone 

evidence showing that Swinson and Jamahrey traveled together to 

Seminole County on the day of the murders and Gene Reeves’s 

testimony that two men were present at the victims’ home that day.

Moreover, in light of this evidence, Jamahrey’s testimony raises an 

inference that Swinson, not Jamahrey, shot the victims. 

Accordingly, we find no merit to Swinson’s argument on this ground.

5. Swinson next asserts that the trial court committed 

reversible error by failing to grant his motion for a mistrial 

regarding inadmissible testimony about his prior criminal history.

Swinson also contends that his trial counsel provided ineffective 

 12 See Gittens v. State, 307 Ga. 841, 850 (4) (838 SE2d 888) (2020) 

(reviewing denial of motion for new trial based on newly discovered evidence 

for an abuse of discretion).
24

assistance of counsel by failing to file a motion in limine to prohibit 

mention of Swinson’s prior criminal history.

After Swinson’s friend testified about the circumstances 

involving the car Swinson kept on the friend’s property, the State 

called the friend’s wife as a witness to testify about her knowledge 

of Swinson’s storage of the car. During the cross-examination of the 

friend’s wife, Swinson’s trial counsel asked what had prompted the

witness on one occasion to ask Swinson if he was putting money and 

drugs in the car. She replied that she had observed that Swinson 

had tattoos that reminded her of the tattoos her son had gotten in 

prison, so she asked Swinson if he had been to prison or jail, to which 

Swinson replied that he had “a long time ago.” Swinson’s trial 

counsel then moved for a mistrial, noting that the answer was 

nonresponsive. The trial court ultimately denied the motion for 

mistrial; instructed the friend’s wife not to mention “anything about

prison by anyone, particularly the defendant”; and instructed the 

jury to disregard the witness’s answer to defense counsel’s question 

as being non-responsive and not to consider it in any way in
25

rendering the verdict. 

(a) “Whether to grant a motion for mistrial is within the trial 

court’s sound discretion, and the trial court’s exercise of that 

discretion will not be disturbed on appeal unless a mistrial is 

essential to preserve the defendant’s right to a fair trial.” Hill v. 

State, __ Ga. __, __ (6) (850 SE2d 110) (2020) (citation and 

punctuation omitted). See also Billings v. State, 293 Ga. 99, 106 (7) 

(745 SE2d 583) (2013). Here, the testimony referring to Swinson’s 

prior prison time came during cross-examination in an answer that 

was not directly responsive to trial counsel’s question. Under such 

circumstances, the nonresponsive and fleeting reference to 

Swinson’s prior time in prison does not improperly place his 

character in issue. See Wade v. State, 304 Ga. 5, 10 (3) (815 SE2d 

875) (2018) (fleeting, nonresponsive reference to defendant’s prior 

incarceration did not place his character at issue). Additionally, the 

trial court directed the jury to disregard the testimony and not to 

consider it in any way during their deliberations, and courts 

“ordinarily presume that a jury follows such [curative] instructions.”
26

Coleman v. State, 301 Ga. 720, 722 (3) (804 SE2d 24) (2017).

Under these circumstances, we cannot say that a mistrial was 

necessary to preserve Swinson’s right to a fair trial, and thus we 

discern no abuse of discretion by the trial court in denying Swinson’s 

motion on this ground. See Thrift v. State, __ Ga. __, __ (3) (a) (852 

SE2d 560) (2020) (no abuse of discretion in denying motion for 

mistrial based on nonresponsive answer to question); Wade, 304 Ga. 

at 10 (3) (same); Graves v. State, 298 Ga. 551, 555 (3) (783 SE2d 891) 

(2016) (same).

(b) Likewise, we conclude that Swinson has failed to show that 

he received ineffective assistance of counsel based on trial counsel’s

failure to file a motion in limine to exclude any references to his 

criminal history. At the hearing on the motion for new trial, trial 

counsel was asked whether he considered filing a motion in limine 

to prevent the State from eliciting any testimony about Swinson’s 

prior criminal history. Counsel replied that he did not, but he 

indicated that filing a motion in limine might have given Swinson 

an additional ground upon which to base his motion for a mistrial in 
27

response to the friend’s wife testimony. He also agreed that evidence 

of Swinson’s prior prison time could potentially prove prejudicial. 

However, as discussed above, the State did not elicit the 

testimony in question; rather, it came in the form of a nonresponsive 

answer to the defense’s cross-examination. His trial counsel then 

immediately moved for a mistrial, which resulted in the trial court’s 

instruction to the jury to disregard the witness’s testimony.

Therefore, Swinson cannot show that the filing of that motion would 

have prevented the witness’s nonresponsive testimony or resulted in 

the grant of a mistrial under the circumstances. Because Swinson 

cannot show that his counsel performed deficiently by failing to file 

the motion in limine or that he was prejudiced within the meaning 

of Strickland, his claim of ineffective assistance of counsel on this 

ground fails. See Lupoe v. State, 300 Ga. 233, 244 (6) (794 SE2d 67) 

(2016) (no ineffective assistance of counsel based on failure to file a 

motion in limine where counsel objected at trial to the introduction 

of the challenged evidence).

6. Finally, Swinson argues that his trial counsel provided 
28

ineffective assistance in failing to file a motion in limine to exclude 

the portion of Swinson’s recorded statement to law enforcement in 

which he requested an attorney. Swinson notes that trial counsel 

and the prosecutor spent considerable time at trial discussing which 

portions of Swinson’s statement should be redacted when it was 

played for the jury, but trial counsel did not ask that Swinson’s 

request for counsel be excluded.

Although trial counsel conceded at the hearing on the motion 

for new trial that a good argument might be made for seeking to 

exclude that portion of Swinson’s interview, he noted that in the 

portion of the statement containing the request, Swinson also told 

law enforcement that he cherished life and did not take other 

people’s lives, which trial counsel believed could give the jury a 

different appreciation of who Swinson was. Moreover, trial counsel 

explained that in deciding which portions of the statement to 

exclude, he was concerned that if too much of the statement were 

redacted, which apparently was effectuated in court by stopping and 

fast forwarding the recording past the redacted portions, the jury 
29

would think that the defense was hiding something incriminating.

Therefore, trial counsel chose to leave the disputed portion of the 

statement in, thinking Swinson would perhaps benefit more than he 

would lose by doing so.

Based on this record, we conclude that trial counsel’s decision 

not to redact Swinson’s request for counsel was a matter of trial 

strategy, and Swinson has failed to show that trial counsel’s strategy 

was so patently unreasonable that it constituted deficient 

performance under Strickland. See McNair v. State, 296 Ga. 181, 

184 (2) (b) (766 SE2d 45) (2014) (“Trial tactics and strategy, no 

matter how mistaken in hindsight, are almost never adequate 

grounds for finding trial counsel ineffective. . . .” (citation and 

punctuation omitted)).

Judgment affirmed. All the Justices concur.